Citation Nr: 0110856
Decision Date: 04/13/01 Archive Date: 04/23/01
DOCKET NO. 00-04 070 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a right ankle
disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jerry Morano, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to March
1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi, that denied the above claim.
FINDING OF FACT
A right ankle disability did not result from disease or
injury in service.
CONCLUSION OF LAW
The veteran is not entitled to service connection for a right
ankle disability. 38 U.S.C.A. § 1110 (West Supp. 2000); 38
C.F.R. §§ 3.303, 3.304 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual background
The veteran filed a claim in October 1998 seeking service
connection for a bad sprain of the right foot incurred in
April or May 1944. He said he spent five days in a VA
hospital in New Orleans, Louisiana for knee problems. He
submitted a statement from a friend (C.J.T.) who stated that
the veteran "threw his foot out" while running during
military training at Port Huneme [sic], California, and that
his foot turned all the way over. C.J.T. said the veteran's
foot swelled, and he went to an aid station of the 136th
Battalion, where he was told to stay off the foot. The
veteran also submitted a September 1998 statement from
Michael R. O'Neal, M.D., saying that the veteran suffered a
chronic right ankle sprain with malalignment of the bones.
Dr. O'Neal stated that x-rays showed an old fracture in this
area, and he felt this was a service related injury.
VA records show application for hospital care in 1949 for
itching in both ears, and hospitalization at New Orleans VA
hospital from July 18 to 24, 1950, for cellulitis, skin on
the right knee, and lymphangitis, right knee.
Service medical records show that the veteran fell playing
baseball in April 1944 at Port Hueneme, California, and was
treated for a left ankle sprain. The left ankle was
moderately swollen, and there was pain on motion, but there
was no displacement. X-rays were negative for fracture. He
was released for duty four days later. On June 5, 1944, he
was examined and found physically qualified for transfer.
The veteran's physical examination upon discharge indicated
that he had a left ankle sprain in 1944. There is no mention
of the right ankle.
Service connection for left ankle sprain was granted in
February 1999. The veteran submitted a statement saying that
it was his right ankle that he sprained and asserting that
his service medical records showed it to be his right ankle.
The RO denied service connection for a right ankle disability
in a second February 1999 rating decision. The veteran
asserted that he had received treatment at the VA in New
Orleans in 1946 for his right ankle and that "blood poison"
ran up to his knee and to his stomach. The RO requested the
veteran's VA treatment records from New Orleans VA medical
center (MC). In June 1999, the RO received a response
indicating that the records may have been retired to the
Federal Records Center, and that those records would be
requested. However, there was a hand-written note saying
that there were no records on the veteran.
In November 1999, the RO wrote to the veteran and told him
what evidence was needed to complete his application. It
further told him what evidence VA would attempt to obtain on
his behalf, and what was needed to substantiate his claim.
In December 1999, the RO again wrote to the veteran and told
him it had not received the evidence requested from him. He
was told that he could still submit the evidence, but his
claim had been denied.
The veteran responded in writing in December 1999. He
recounted the injury to his foot in service. He reported
that he went to the VA hospital in 1946 with a red streak
from his foot to his stomach and said he had penicillin shots
every three or four hours for a week. He said his foot
always had a hard ache, and he first went to the doctor for
it three months before. The veteran said his foot was not x-
rayed in service. In January 2000, the RO denied his claim.
In support of his claim he testified at a local hearing in
June 2000. He stated that he fell while running and injured
his right foot. The veteran further asserted that he
received medical treatment from a hospital corpsman and was
informed that he had sprained his right ankle. Further, he
testified that a doctor examined his right ankle and
confirmed the diagnosis. The veteran testified that the
doctor told him that the injury would probably cause him
problems the rest of his life. Because of his injury, the
veteran averred that he received no duty status for several
weeks. He stated that during his discharge examination he
did not inform anyone of his right ankle injury.
Additionally, the veteran testified that he continued to have
problems with his right ankle since separation from the
service. He stated that approximately one year after his
discharge he received VA treatment for his right ankle and
was medicated with penicillin. He testified that he had a
red streak that ran from his right foot past his knee and up
to his stomach. At night his foot would ache causing him to
wake up several times a night. The veteran also testified
that after receiving VA treatment within a year of his
discharge, he did not receive treatment again for his right
ankle until 1998.
The hearing officer noted that service medical records showed
injury to the left ankle, and the veteran replied that he did
not have a left ankle sprain. When questioned further about
which ankle was injured, the veteran repeated that he injured
his right ankle and not his left. He testified that service
medical records showing a left ankle injury were incorrect,
and said they should be corrected. He was advised that VA
could not change his service medical records. The veteran
asked about his buddy statement, and the hearing officer
noted that the buddy did not say which ankle the veteran
injured. The veteran responded that he (the veteran) told
his buddy it was the right foot.
At his hearing, the veteran submitted a medical report dated
in March 2000 from William A. Morrison, M.D. The veteran
gave Dr. Morrison a history of injury to the right foot while
in training in May 1944. He said he was told he had a bad
sprain and no x-rays were taken. His foot bothered him in
1946, and Dr. Morrison said it sounded like he had
lymphangitis. The veteran reported pain at night keeping him
from sleeping well. He walked unassisted and had no
noticeable limp. Dr. Morrison ordered x-rays of the right
foot and ankle. X-rays of the right foot showed no fractures
or dislocations. X-rays of the right ankle showed some post-
traumatic changes involving the tip of the medial malleolus.
The ankle mortise was maintained, and there was no
significant narrowing of joint spaces. The assessment was
history of sprain to the right ankle from 1944. Dr. Morrison
disagreed with Dr. O'Neal's assessment of malalignment of the
bones. The bones were aligned, and there was no significant
narrowing of the ankle joint. Dr. Morrison also stated that
he was not certain that the veteran experienced so much pain
involving the ankle at night.
Thereafter, the veteran presented a copy of a letter from
C.J.T. asking the veteran about his right foot. He also
submitted a letter from K.N.L. saying he had enjoyed talking
to the veteran and that he remembered the veteran had either
broken or sprained his right ankle in service. The veteran
submitted another statement from C.J.T. saying that the
veteran hurt his right foot in April or May 1944.
II. Legal analysis
During the pendency of this appeal there has been a
significant change in the law; i.e., the enactment of the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000). Among other things, this law
redefines the obligations of VA with respect to the duty to
assist. This change in the law is applicable to all claims
filed on or after the date of enactment of the Veterans
Claims Assistance Act of 2000, or filed before the date of
enactment and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
VCAA had not been enacted when the RO adjudicated the
veteran's claim. The question the Board must now address is
whether there is any duty of assistance or notice required by
the new law that has not already been substantially completed
in this case, notwithstanding that such assistance may not
have been required under the former law, and, if not, whether
there is any prejudice to the veteran in the Board's
consideration of this question without referring it to the
RO. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC
16-92.
In the circumstances of this case, there is no prejudice to
the claimant in the Board's consideration of whether there
has been substantial compliance with the requirements of
VCAA. The question is whether the claimant had adequate
notice of applicable laws and regulations, knew of the need
to submit evidence and argument with respect to the issue,
and whether he had the opportunity to address the issue at a
hearing. Bernard, 4 Vet. App. at 394. In this case, the
veteran has been given notice of the laws and regulations
pertaining to the requirements to establish entitlement to
service connection in statements or supplemental statements
of the case in February and August 2000. He has been advised
of the evidence that would support or help substantiate his
claim in a development letter in November 1999 and by the
hearing officer in June 2000. He has been accorded a VA
hearing. The substantive laws and regulations to be applied
are the same as those of which the veteran has had notice.
There is no prejudice to the veteran in deciding his claim on
the merits, because he has been told what the requirements
are to establish service connection, has been provided ample
opportunity to present evidence meeting those requirements,
and has had the assistance of the RO to develop every
possible source of evidence or information that might
substantiate his claim. The requirements of the VCAA have
been substantially met by the RO, and there would be no
possible benefit to remanding this case to the RO for its
consideration of the requirements of the VCAA in the first
instance. As discussed below, every possible avenue of
assistance has been explored, and the veteran has had ample
notice of what might be required or helpful to his case. In
the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
inform and assist the appellant in this case. Further
development and further expending of VA's resources is not
warranted.
There is no issue as to substantial completeness of the
application. See Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096
(2000) (to be codified at 38 U.S.C. § 5102).
On receipt of a substantially complete application, the RO
may need to tell the claimant what further lay or medical
evidence may be necessary to substantiate the claim, what
evidence the claimant should provide, and what evidence the
Department will attempt to obtain on behalf of the claimant.
VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97
(2000) (to be codified as amended at 38 U.S.C. § 5103). The
veteran was notified of information necessary to substantiate
his claim on several occasions. The first was by letter
dated in November 1999, and then by means of the February
2000 statement of the case, and an August 2000 supplemental
statement of the case. The hearing officer also told the
veteran the kind of information needed to substantiate his
claim.
If a reasonable possibility exists that assistance would aid
in substantiating the claim, the RO must make reasonable
efforts to obtain relevant records that the claimant
adequately identifies and authorizes the Secretary to obtain,
and must tell the claimant if VA is unable to obtain the
records. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be
codified at 38 U.S.C. § 5103A(b)). In this case, the
appellant has provided private treatment records, and has
asserted that he had no private treatment for his right ankle
before 1998. He has not provided notice of additional
relevant treatment records that have not been obtained. It
therefore appears that there is no reasonable need for
further development of private medical records or that
further efforts would yield private medical records that
would aid in substantiating the claim.
Additionally, in cases of disability compensation, VA is
responsible for obtaining service medical records and other
relevant records pertaining to active military service that
are held by a governmental entity, obtaining VA medical
treatment or examination reports if the claimant provides
sufficient information to locate the records, and obtaining
any other relevant Federal records that the claimant
adequately identifies and authorizes the Secretary to obtain.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38
U.S.C. § 5103A(c)). The veteran's service medical records
have been obtained. The veteran has asserted that he had VA
medical treatment for his right ankle, for a red streak from
his foot to his stomach, in 1946. The actual records of such
treatment are not available, although the RO has attempted to
retrieve them. The record of hospitalization for a disorder
such as that described by the veteran shows that he was
hospitalized in 1950 for lymphangitis and cellulitis of the
right knee. A search for further records has yielded the
response that none are available. It appears reasonably
certain that such records do not exist and any further
attempt to obtain the records would be futile. See VCAA,
Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000)
(to be codified at 38 U.S.C. § 5103A(b)(3)). The RO has
discharged this duty.
The duty to assist may include providing a medical
examination or obtaining a medical opinion if necessary to
make a decision on the claim. Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98
(2000) (to be codified at 38 U.S.C. § 5103A(d)). In this
case, for reasons discussed below, an examination was not
necessary to make a decision because there is sufficient
medical evidence for a decision on the claim.
There does not appear to be any avenue of development or
assistance under the VCAA that has not been attempted by the
RO in this case. The Secretary is not required to provide
assistance if no reasonable possibility exists that such
assistance would aid in substantiating the claim. VCAA, Pub.
L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be
codified at 38 U.S.C. §5103A(a)(2)). The Secretary having
already provided every possible assistance indicated by the
record or assertions of the veteran, there is no reasonable
possibility that return of the claim to the RO for further
efforts to assist would raise any reasonable possibility of
substantiating the veteran's claim. Remand for the RO to
address the requirements of the Act in the first instance
would serve no practical purpose.
Establishing service connection for a disability requires the
existence of a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained during service. 38 U.S.C.A. § 1110
(West Supp. 2000); 38 C.F.R. §§ 3.303, 3.304 (2000); Cuevas
v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v.
Derwinski, 2 Vet. App. 141, 143 (1992).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990). See VCAA, Pub. L. No. 106-475, § 4, 114 Stat.
2096, 2098,-99 (2000) (to be codified as amended at 38 U.S.C.
§ 5107(b)).
The veteran's claim is that a current right ankle disability
is related to an in-service sprain in 1944. The first
medical evidence of a diagnosis of right ankle disability is
dated in 1998. The veteran asserted that is when he first
sought treatment, other than the alleged treatment at VA in
1946.
There is no record of the veteran having received VA
treatment in 1946. There is, however, a hospital record
showing treatment at the VA hospital in New Orleans for
cellulitis and lymphangitis of the right knee in 1950. This
would appear to be the treatment recollected by the veteran.
The actual hospital records are no longer available, but the
information of record is sufficient to show the dates of
treatment and the diagnosis. No right ankle disorder is
indicated.
The veteran's service medical records are quite clear in
showing an injury to the left ankle in April 1944, about the
time the veteran says he injured his right ankle. They also
clearly show that the left ankle was x-rayed, and there was
no fracture. The veteran said no x-rays were taken. The
service medical records are more probative and entitled to
greater weight than the veteran's recollections more than 54
years after the fact.
The veteran has also submitted lay statements from two
individuals who served with him. One submitted a statement
recalling that the veteran injured his ankle. He later sent
a letter to the veteran and a statement purporting to recall
that the veteran injured his right ankle. The veteran also
submitted another letter referencing his right ankle. The
Board accords these statements no weight to the extent that
they are offered to show injury to the right ankle as opposed
to the left. First, the veteran stated at his hearing that
he told the individual that it was his right ankle. That
implies that the individual had no independent recollection
of which ankle was injured. Second, the contemporaneous
medical record showing a left ankle injury is far more
credible and competent than lay recollection more than 50
years after the event. It is believable that these fellow
service-members may have recalled the veteran having injured
an ankle or foot shortly before they were shipped out, but it
is not believable, in the face of contrary contemporaneous
records, that their recollection of which foot was involved
is more accurate than the medical record.
The veteran has presented medical evidence from Dr. O'Neal
positing a relationship between a current right ankle
disability and injury in service. However, Dr. O'Neal's
opinion is based upon an inaccurate history provided by the
veteran. Furthermore, Dr. O'Neal's very conclusory statement
is controverted by the more comprehensive report of Dr.
Morrison, whose x-rays showed no fracture and no malalignment
of the right foot or ankle, and no significant joint space
narrowing. Dr. Morrison did not relate any current ankle
disability to injury in service and only assessed, as the
veteran reported to him, that he had a history of right ankle
sprain in 1944. The Board assigns no probative weight to Dr.
O'Neal's assessment of a relationship between a current right
ankle disability and injury in service. See Hickson v. West,
12 Vet. App. 247 (1999) (holding that the Board did not err
in discounting the probity of a doctor's statement as to
nexus because of the fact that it linked the appellant's back
pain to an unspecified trauma and that it was not supported
by clinical medical records); see also, Reonal v. Brown, 5
Vet. App. 458, 460-61 (1993) (holding that "[a medical]
opinion based upon an inaccurate factual premise has no
probative value.") Here, the private medical opinion was
based only on the veteran's inaccurate factual premise of a
right ankle injury during service.
The service medical records outweigh the veteran's
recollection as to which ankle was injured in service. The
actual report of VA hospitalization in 1950 for lymphangitis
of the right knee contradicts his assertion that his
hospitalization for that disorder was in 1946. The fact that
the treatment was shown as for disability involving the right
knee, rather than the right ankle, likewise contradicts and
outweighs the veteran's assertion.
The credible and competent evidence of record creates a clear
preponderance of evidence against the veteran's claim. There
is no reasonable doubt, and the claim must be denied. VCAA,
Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2098-99 (2000)
(to be codified as amended at 38 U.S.C. §5107).
ORDER
Entitlement to service connection for a right ankle
disability is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals